Ex Parte Donin De Rosiere

Patent Trial and Appeal Board

Jul 31, 2018

12668924 (P.T.A.B. Jul. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/668,924 01/13/2010 Emmanuel Donin De Rosiere
24978 7590 08/02/2018
GREER, BURNS & CRAIN, LTD
300 S. WACKER DR.
SUITE 2500
CHICAGO, IL 60606
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
1606.89859 9788
EXAMINER
YU,XIANG
ART UNIT PAPER NUMBER
2455
NOTIFICATION DATE DELIVERY MODE
08/02/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EMMANUEL DONIN DE ROSIERE
Appeal2018-000198
Application 12/668,924
Technology Center 2400
Before ALLEN R. MacDONALD, JASON V. MORGAN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
MacDONALD, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1-6 and 8-15. Appellant has cancelled claim 7. App. Br. 20.
We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE.
Appeal2018-000198
Application 12/668,924
Illustrative Claim
Illustrative claim 1 under appeal reads as follows ( emphasis,
formatting, and bracketing added):
1. A method for discovering the topology of the communications
between applications of a computer network comprising several items
of equipment, the method comprising the following steps:
a) connecting a server to each of the items of equipment of the
network using an administration protocol;
b) for each item of equipment, acquiring raw data relating to
applications hosted within this item of equipment, said raw
data comprising performance data for each application;
c) for each item of equipment, acquiring connection data for
each live connection established by an application;
d) from the raw data and the connection data thus obtained,
determining communication links respectively between pairs
of applications of said network;
e) generating a level-7 topology of said network from said
communication links; and
f) aggregating said acquired raw data by polling both ends of
said communication links for achieving information
redundancy,
wherein said communication links are determined using a first
calculation phase and a second calculation phase,
[ ( 1)] said first calculation phase being performed for
making a first link between a source application and a
connection discovered on a source item of equipment
based on a source IP address and a source port number,
and
[ (2)] said second calculation phase being performed for
making a second link between the connection and a
destination application based on a destination IP
address and a destination port number,
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Application 12/668,924
[(3)] linking the source application residing on the source
item of equipment to the different destination
application residing on a destination item of equipment
based on said first calculation phase and said second
calculation phase.
Rejection on Appeal
The Examiner rejected claims 1---6 and 8-15 under 35 U.S.C. § I03(a)
as being unpatentable over the combination of Ammerman, III et al. (US
2006/0212569 Al; pub. Sep. 21, 2006) and Babutzka et al. (US
2006/0136504 Al; pub. June 22, 2006). 1
Issue on Appeal
Did the Examiner err in rejecting claim 1 as being obvious?
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred.
In the Non-Final Action of October 2, 2015, The Examiner
determines:
Ammerman discloses of polling the communication links
from both ends, for both the source and destination IP addresses
and the ports as explained further below, and thus is already
achieving the information redundancy. In addition to aggregating
the data and pairing up the source and destination
nodes/applications, Ammerman does not expressly disclose of
1 Our decision as to claim 1 is determinative as to the rejection of claims 2---6
and 8-15. Except for our ultimate decision, claims 2---6 and 8-15 are not
discussed further herein.
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Appeal2018-000198
Application 12/668,924
acqmnng the raw data related to the specific runmng
applications.
Oct. 2, 2015 Non-Final Act. 8 (emphasis added).
In the Appeal Brief, the Appellant argues the combination of
Ammerman and Babutzka fails to disclose aggregating the acquired raw data
by polling both ends of the communication links. App. Br. 14--16.
In the Answer, the "Examiner responds that the term 'aggregating'
was interpreted as 'collecting' and Ammerman was relied upon [ to disclose]
collecting information by polling on both the source end and the
destination end." Ans. 5 ( emphasis added).
The Examiner further concludes:
Ammerman discloses . . . network sniffer devices and
translator agents to discover and observe the network traffic ( e.g.,
Ammerman ,r,r [ 0014--18]). Ammerman further discloses . . .
generating a topology of processes in the network using a
discovery process, which further involves using a translator
agent to ask node A (e.g., source node) to identify the
applications that are running on port 80. This discovery or
identifying process can be interpreted [to be] similar to a "poll"
which in tum identifies the application to be a web browser like
Internet Explorer. This discovery or "polling" can be performed
on both ends of the communication link. Furthermore, in
combination with Babutzka's teachings, all the additional
information such as the "raw data" or performance data of each
running application can be further incorporated with each
particular node.
Ans. 6 ( emphasis added).
As to Appellant's above contention, we agree. We have reviewed the
Ammerman reference, and while we find "the translator agent can ask node
A to identify the application that is executing" (Ammerman ,r 18), we do not
find an explicit disclosure of "polling the communication links from both
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Application 12/668,924
ends" as stated by the Examiner. We conclude the Examiner has not
demonstrated full support in Ammerman for the Examiner's initial finding
that "Ammerman discloses of polling the communication links from both
ends." Non-final Act. 8. Our conclusion is supported by the Examiner's
later conclusory statements, which are used to bolster the initial finding's
deficiencies. Specifically, the Examiner concludes, without sufficient
factual support or explanation, that Ammerman's "discovery or identifying
process can be interpreted [to be] similar to a 'poll' which in tum identifies
the application to be a web browser like Internet Explorer. This discovery or
'polling' can be performed on both ends of the communication link."
Ans. 6 (emphasis added).
The later conclusory statements are not sufficient to bridge the
deficiencies in the Examiner's finding as the Examiner's conclusory
statements do not provide a clear articulation of the reason( s) "why" the
claimed invention would have been obvious (i.e., why is it obvious to an
artisan to change from the limited "ask" of Ammerman to polling on both
ends of the communications link).
The key to supporting any rejection under 35 U.S.C. 103 is the
clear articulation of the reason(s) why the claimed invention
would have been obvious. The Supreme Court in KSR noted that
the analysis supporting a rejection under 35 U.S.C. 103 should
be made explicit. The Court quoting In re Kahn, 441 F .3d 977,
988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that
"' [R ]ejections on obviousness cannot be sustained by mere
conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal
conclusion of obviousness."' KSR, 550 U.S. at 418, 82 USPQ2d
at 1396.
MPEP § 2141 III. (Ninth Edition, Revision 08.2017).
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Application 12/668,924
We conclude, consistent with Appellant's argument, that: (1) the
Examiner has not demonstrated Ammerman teaches or suggests "polling
both ends of said communication links," as claimed and (2) there is
insufficient articulated reasoning to support the Examiner's final conclusion
that claim 1 would have been obvious to one of ordinary skill in the art at the
time of Appellant's invention.
CONCLUSIONS
(1) Appellant has established that the Examiner erred in rejecting
claims 1-6 and 8-15 as being unpatentable under 35 U.S.C. § 103(a).
(2) On this record, these claims have not been shown to be
unpatentable.
DECISION
The Examiner's rejection of claims 1---6 and 8-15 is reversed.
REVERSED
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